LEGAL chiefs are considering laws which allow convictions for psychological and emotional abuse.

SCOTLAND'S top prosecutors want to adopt tough new European-style laws to tackle a rising tide of domestic abuse.

They are studying legislation from Sweden and France which makes it possible to prosecute partners whose abuse stops short of physical violence.

It would allow prosecutors to convict non-violent abusers for the first time.

They would have to establish patterns of abusive behaviour but the offences may not require corroboration in court, a proposed change in the rules of evidence that has already provoked severe criticism.

Police recorded 60,080 incidents of domestic abuse in Scotland last year, up from 59,847 in the previous year.

Despite these figures, incidents are often significantly under-reported and research has shown that most victims contact the police only after they have been assaulted between 20 and 30 times.

Anne Marie Hicks, the national procurator fiscal for domestic abuse, explained the motivation to introduce new laws and how they might help protect women.

Powerful adverts used in domestic abuse campaign

The prosecutor, who has coordinated domestic abuse cases throughout the country since her appointment last September, said: “In Scotland in recent years, we have modernised our law in sexual offending, hate crime, serious and organised crime, stalking and human trafficking.

“Now is the right time to examine the law on domestic abuse and consider whether bespoke specialist legislation could have a role to play.”

Hicks spoke out in the wake of Solicitor General Lesley Thomson’s call for new legislation aimed at protecting women from violent partners.

At present, there is no specific offence of domestic abuse as defined by criminal law and offenders are instead prosecuted for crimes such as rape or assault.

Hicks said we need legislation which doesn’t just focus on provable physical violence or damage to property.

Instead, it would focus on long spells of psychological and emotional abuse that often takes place behind closed doors – what experts often term “coercive control”.

She added: “Victims tell us that they feel that months, years and sometimes decades of abuse are distilled into discrete, isolated incidents on which they are called to give evidence.

“Instead of being able to describe the patterns of psychological, emotional and financial abuse that they have endured, the focus of the courts can sometimes be only on the episodes of sexual abuse or violence that punctuated this campaign of abuse and only those episodes which were corroborated.

“Our laws often focus on the damage to property or to a person’s physical integrity but the harm caused by domestic abuse doesn’t always neatly fit into these categories.

“Domestic abuse violates the emotional and psychological integrity of victims and we need a law that recognises that and punishes those responsible.”

Domestic violence campaign poster

The French introduced a law in 2010 relating to “psychological violence” against spouses and partners.

In Sweden, there has been a law in force since 1998 criminalising the “gross violation of a woman’s integrity”.

In Westminster, Plaid Cymru MP Elfyn Llwyd is seeking to introduce a Private Member’s Bill which would create a criminal offence of domestic abuse in England and Wales, with the second reading set for later this month.

Hicks says the creation of a specific offence could reflect the “true experience” of victims of long-term abuse. Removing the requirement for corroboration in Scots law could also help to protect the rights of victims but will face opposition from lawyers who fear the loss of a bulwark against wrongful convictions and miscarriages of justice.

As it stands, if there is no second source of evidence to support a victim’s allegation of domestic abuse, there can be no prosecution. Justice Secretary Kenny MacAskill has been forced to put his plans to scrap corroboration on hold and order a new review.

Hicks said: “No matter how serious the allegation or how severe the consequences for the victim, that victim will, as a matter of law, be denied access to justice. This is entirely unacceptable.

“The very nature of domestic abuse means that it often occurs in private and that should not, in any fair and modern legal system, be a barrier to justice. We fully support the Scottish Government’s proposal to abolish the requirement for corroboration in Scots law.”

Another major challenge faced by prosecutors is that victims are often reluctant to speak up at court or withdraw their allegations before a trial starts – sometimes out of fear or a misplaced loyalty to the accused.

A proposed specific law has been welcomed by campaign and advocacy organisations.

Mhairi McGowan, the head of Glasgow-based ASSIST, an independent support agency for victims of domestic abuse or violence, said new legislation would be an innovative and ground-breaking move.

She added: “What the criminal justice system misses is the whole spectrum of jealousy and controlling behaviour that is a day-to-day given of domestic abuse that happens all the time – but it’s not criminal.

“It limits your life space, it’s horrible and can fundamentally affect your relationships for the rest of your life and change the way your children develop and the type of human beings they become – but most of it isn’t criminal.”

McGowan said that cases collapsing before they came to court and delays in waiting for a case to be called created more distress for victims.

She added: “If a case doesn’t come to court because of a lack of corroboration for victims of abuse, that’s very difficult because they aren’t getting their day in court.

“Depending on the length of time that people have to wait – six months sometimes – you can also be under pressure from the accused, your own family, emotionally or physically.”

Lily Greenan, from Scottish Women’s Aid, said: “Domestic abuse isn’t about one single incident, it’s about patterns of behaviour and the way an abusive man is trying to control what his partner can do.

“Violence is one tool that’s used to control her but it’s not the only thing. We work with women who describe situations which one academic called ‘intimate terrorism’, where the level of fear conditioned into women are so extreme they are similar to people who survived torture or conflict situations.

“We would like to see the justice system really engage with what domestic abuse is in the round rather than narrow definitions we have now.”

Legal debate

Plans to abolish corroboration and make it easier to win convictions in rape and domestic abuse cases have been backed by the police, victims’ groups and prosecutors.

But, in the face of fierce criticism from lawyers and judges, Justice Secretary Kenny MacAskill has delayed the new law abolishing corroboration in criminal trials for at least a year until a review, chaired by Lord Bonomy, reports back.

Ian Cruickshank, convenor of the Scottish Law Society’s Crime Committee, said: “Corroboration has rightly been described as the cornerstone of the criminal system that we operate. The reason for that is it’s effectively the only real safeguard that there is in the process.

“It affects all types of crime and obviously has particular significance when it comes to cases of domestic abuse or sexual offences because they are going to be the sort of offences committed in private.

“The perception that’s been given is corroboration is a doctrine which is outmoded but I’d say that’s incorrect because for years the court has had to look at the doctrine of corroboration. It has definitely moved with the times.

Ian Cruikshank, Convener of of the Law Society's Crime Committee

“There are not that many cases which go to court where there’s a lack of corroboration but it’s getting them through the doors of the court. That’s entirely understandable when you’re talking about domestic abuse cases.

“You might also have to question the extent of investigation in these cases before it gets reported. Quite often, there may be corroboration there that’s not been picked up.

“Remember, it’s evidence from two sources – not two people – and sources could cover all manner of things, including forensic sources.

“Sometimes you question whether police have carried out as full an investigation as they could.

“The real difficulty is, if you are moving towards a system where there is just one source of evidence or the word of one person, in the majority of cases that person will be telling the truth but there are cases where people do lie.

“When corroboration is being discussed these days, everybody is focused on domestic abuse and serious sexual offences cases but they are a minority of the prosecutions in Scotland.”